State of West Virginia v. Tulsa Johnson

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2017 Term
_____________ FILED
March 2, 2017
No. 16-0265 released at 3:00 p.m.
RORY L. PERRY, II CLERK
_____________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
V.
TULSA JOHNSON,
Defendant Below, Petitioner
____________________________________________________________________
Appeal from the Circuit Court of Berkeley County
Honorable John C. Yoder, Judge
Criminal Action No. 15-F-48
AFFIRMED
____________________________________________________________________
Submitted: February 15, 2017
Filed: March 2, 2017
Matthew Brummond Cheryl K. Saville
Public Defender Services Assistant Prosecuting Attorney
Charleston, West Virginia Martinsburg, West Virginia
Attorney for Petitioner Attorney for Respondent
JUSTICE DAVIS delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. In order for a lay witness to give opinion testimony pursuant to Rule 701
of the West Virginia Rules of Evidence, (1) the witness must have personal knowledge or
perception of the facts from which the opinion is to be derived; (2) there must be a rational
connection between the opinion and the facts upon which it is based; (3) the opinion must
be helpful in understanding the testimony or determining a fact in issue; and (4) the opinion
must not be based on scientific, technical, or other specialized knowledge within the scope
of Rule 702.
2. A witness must be qualified as an expert under Rule 702 of the West
Virginia Rules of Evidence in order to present evidence of cell phone historical cell site data.
3. “Where objections were not shown to have been made in the trial court,
and the matters concerned were not jurisdictional in character, such objections will not be
considered on appeal.” Syllabus point 3, O’Neal v. Peake Operating Co., 185 W. Va. 28,
404 S.E.2d 420 (1991).
i
Davis, Justice:
This is a criminal appeal by Tulsa Johnson (“Ms. Johnson”) from an order of
the Circuit Court of Berkeley County sentencing her to imprisonment after a jury convicted
her of felony murder and conspiracy to commit robbery. The circuit court imposed a
sentence of life imprisonment without parole for the felony murder conviction, and one to
five years imprisonment for the conspiracy conviction.1 In this appeal, Ms. Johnson contends
that she is entitled to a new trial because (1) a police officer improperly testified as a lay
witness regarding historical cell site data and (2) the prosecutor made improper remarks
regarding DNA evidence during closing arguments. After a careful review of the briefs, the
record submitted on appeal, the applicable law, and listening to the argument of the parties,
we affirm.
I.
FACTUAL AND PROCEDURAL HISTORY
The relevant facts of this case began during the afternoon of September 14,
2014, in Martinsburg, West Virginia. During that time, it appears that Ms. Johnson was
driving around the city selling heroin. She was driving with a companion, LaQuadia Grant
(“Ms. Grant”). At some point, Ms. Johnson indicated she needed more drugs to sell. Ms.
Grant used her cell phone to contact a drug dealer named Michael Garcia (“Mr. Garcia”) and
1
The sentences were ordered to be served consecutively.
1
arranged to meet with him so that Ms. Johnson could purchase more heroin. Before meeting
with Mr. Garcia, Ms. Johnson stopped and picked up two more passengers, Vincent Smith
(“Mr. Smith”) and Jucobe Johnson (“Mr. Johnson”).2
Mr. Garcia had initially told Ms. Grant to meet him at a gas station called
ROCS. However, once they arrived at the gas station, Mr. Garcia informed Ms. Grant, by
phone, that he wanted to make the drug sale at the home of a person identified as Davon
Adams (“Mr. Adams”).3 Once they arrived at the home of Mr. Adams,4 everyone went inside
except for Mr. Johnson. After they entered the home, Ms. Johnson spoke with Mr. Adams
privately in another room. Ms. Johnson informed Mr. Adams that they were going to forcibly
take the drugs from Mr. Garcia. As a result of that conversation, Mr. Adams came out of the
room and told everyone to leave his home and that no drug deal would be made there. After
everyone left the home, Mr. Adams saw Ms. Johnson and Mr. Smith get into Mr. Garcia’s
vehicle and drive off in the direction of a cornfield near his home. Mr. Adams tried to call
and text Mr. Garcia on his cell phone several times to warn him that he was going to be
robbed, but could not reach him. Roughly a half hour or so after Mr. Garcia drove away, Mr.
2
Mr. Johnson was not related to Ms. Johnson.
3
It appears that Mr. Garcia did not get out of his vehicle, and no one got out of
Ms. Johnson’s vehicle.
4
It appears that Mr. Adams lived in a housing complex outside of Martinsburg,
in the town of Inwood, West Virginia.
2
Adams’ daughter yelled from the outside that police cars and ambulances were in the area.
Mr. Adams went outside to the area where Mr. Garcia had driven. Mr. Adams was stopped
by the police from getting close to where the police were investigating. However, Mr.
Adams was able to see Mr. Garcia lying in the gravel road and not moving. According to the
testimony of the medical examiner, Mr. Garcia had been shot six times, with the fatal bullet
piercing his heart.
On February 19, 2015, a grand jury indicted Ms. Johnson and Mr. Smith for
first degree murder, felony murder, robbery in the first degree, and conspiracy to commit
robbery. The grand jury indicted Mr. Johnson as an accessory after the fact to murder. Ms.
Johnson and her co-defendants were tried together in September 2015. The State called
fifteen witnesses during the trial.5 Neither Ms. Johnson nor her co-defendants testified at the
trial. Counsel for Ms. Johnson called one witness, a private investigator. Counsel for Mr.
Johnson called one witness, an expert in the field of computer science radio frequency
engineering.6 Counsel for Mr. Smith did not call any witnesses. The jury returned a verdict
convicting Ms. Johnson and Mr. Smith of felony murder and conspiracy to commit robbery.
5
Relevant facts provided by the State’s witnesses will be presented in the
Discussion section of this opinion.
6
The record indicates that the expert was testifying on behalf of all defendants.
3
Mr. Johnson was acquitted of the single charge against him. Ms. Johnson has now filed this
appeal.7
II.
STANDARD OF REVIEW
The two assignments of error in this case have distinct standards of review that
will be presented below with our discussion of the issues to which they relate.
III.
DISCUSSION
In this appeal, Ms. Johnson raises two issues: (1) the propriety of a police
officer providing testimony about historical cell site data while testifying as a lay witness and
(2) the propriety of comments regarding DNA evidence made by the prosecutor during
closing arguments. We address each issue in turn.
A. Police Officer Testified as Lay Witness
Regarding Historical Cell Site Data
Ms. Johnson contends that the circuit court committed error in allowing one
of the investigating officers, Deputy W. Christian, to testify as a lay witness regarding
7
Mr. Smith filed a separate appeal that was heard at the same time as Ms.
Johnson’s appeal.
4
historical cell site data, i.e., cell phone tower location data. Based upon that data, Deputy
Christian was able to testify that cell phone calls and text messages belonging to Ms.
Johnson, Mr. Smith, Mr. Garcia, Mr. Adams, and Ms. Grant were made in the vicinity of cell
towers that were near the crime scene.8 With respect to Ms. Johnson, based upon this
testimony, the jury could infer that she was in the area of the crime scene near the time of the
murder. Ms. Johnson argues that such testimony had to be presented by a person qualified
as an expert in the area of interpreting historical cell site data. The State contends that
Deputy Christian’s testimony about the historical cell site data involved in this case was
limited and did not have to be presented by an expert.9 We disagree with the State.
We note at the outset that “[t]he action of a trial court in admitting or excluding
evidence in the exercise of its discretion will not be disturbed by the appellate court unless
it appears that such action amounts to an abuse of discretion.” Syl. pt. 10, State v. Huffman,
141 W. Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds by State ex rel. R.L. v.
Bedell, 192 W. Va. 435, 452 S.E.2d 893 (1994). See also Syl. pt. 4, State v. Rodoussakis,
204 W. Va. 58, 511 S.E.2d 469 (1998) (“A trial court’s evidentiary rulings, as well as its
application of the Rules of Evidence, are subject to review under an abuse of discretion
8
Deputy Christian testified that he could not tell from the data who actually
used the cell phones in question.
9
It appears that the State did have an expert in this area, but did not call the
expert to testify.
5
standard.”). In determining whether a witness may render an opinion as a lay witness, we
have held the following:
In order for a lay witness to give opinion testimony
pursuant to Rule 701 of the West Virginia Rules of Evidence (1)
the witness must have personal knowledge or perception of the
facts from which the opinion is to be derived; (2) there must be
a rational connection between the opinion and the facts upon
which it is based; and (3) the opinion must be helpful in
understanding the testimony or determining a fact in issue.
Syl. pt. 2, State v. Nichols, 208 W. Va. 432, 541 S.E.2d 310 (1999), overruled on other
grounds by State v. McCraine, 214 W. Va. 188, 588 S.E.2d 177 (2003), and reinstated by
State v. Herbert, 234 W. Va. 576, 767 S.E.2d 471 (2014). This formulation of the standard
for admitting lay opinion testimony was modified in 2014 by an amendment to Rule 701.
Rule 701 now provides as follows:
If a witness is not testifying as an expert, testimony in the
form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s
testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
(Emphasis added). In view of the addition of subsection (c) to Rule 701, we now restate the
standard for permitting a lay witness to render an opinion, and so hold, that, in order for a lay
witness to give opinion testimony pursuant to Rule 701 of the West Virginia Rules of
Evidence, (1) the witness must have personal knowledge or perception of the facts from
6
which the opinion is to be derived;10 (2) there must be a rational connection between the
opinion and the facts upon which it is based; (3) the opinion must be helpful in understanding
the testimony or determining a fact in issue; and (4) the opinion must not be based on
scientific, technical, or other specialized knowledge within the scope of Rule 702.
In this case, Deputy Christian presented testimony as a lay witness that Ms.
Johnson’s cell phone was in the vicinity of the crime scene at the time of the murder. This
testimony was given based upon Deputy Christian’s interpretation of historical cell site data.
Ms. Johnson argues that Deputy Christian’s testimony was based upon technical or other
specialized knowledge within the scope of Rule 702 of the West Virginia Rules of
Evidence.11 This issue requires the Court to determine whether an expert is needed to inform
10
It has been recognized that, “[i]n addition to the express requirements of Rule
701, through case law the state Supreme Court has incorporated a requirement into the rule
that a lay witness have ‘personal knowledge’ of the issue he or she will render an opinion
on.” 2 Louis J. Palmer, Jr., Robin Jean Davis & Franklin D. Cleckley, Handbook on
Evidence for West Virginia Lawyers § 701.02, at 4 (6th ed. 2015).
11
Rule 702 provides in full:
(a) If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education may
testify thereto in the form of an opinion or otherwise.
(b) In addition to the requirements in subsection (a),
expert testimony based on a novel scientific theory, principle,
methodology, or procedure is admissible only if:
(1) the testimony is based on sufficient
(continued...)
7
a jury about historical cell site data. While this is an issue of first impression for this Court,
it has been addressed in other jurisdictions.
As an initial matter, we must present some background information regarding
the interplay of cell phones and cell phone towers. A cell phone transmits and receives
signals throughout a cellular network like a two-way radio. See United States v. Hill, 818
F.3d 289, 295 (7th Cir. 2016) (“A cell phone is essentially a two-way radio that uses a
cellular network to communicate.”). Cell phone networks are divided into geographic
coverage areas that are called “cell sites or towers.” Each cell site contains an antenna that
receives and transmits signals to cell phones. See In re Application of U.S. for an Order for
Prospective Cell Site Location Info. on a Certain Cellular Tel., 460 F. Supp. 2d 448, 450
(S.D.N.Y. 2006). “To connect with the local telephone network, the Internet, or other
wireless networks, cell-phone providers maintain an extensive network of cell sites, or radio
base stations, in the geographic areas they serve.” State v. Earls, 214 N.J. 564, 576, 70 A.3d
630, 637 (2013). Cell sites “are similar to traditional radio towers; however, they emit
frequencies with much lower power, which allows many people in a small area to
11
(...continued)
facts or data;
(2) the testimony is the product of reliable
principles and methods; and
(3) the expert has reliably applied the
principles and methods to the facts of the case.
8
communicate over the same frequencies without interference.” Adam Koppel, Warranting
A Warrant: Fourth Amendment Concerns Raised by Law Enforcement’s Warrantless Use of
GPS and Cellular Phone Tracking, 64 U. Miami L. Rev. 1061, 1066 (2010). The size of the
area served by a cell site will depend “upon a number of factors, including but not limited
to, the height of the antennas, topography of the land, vegetative cover and physical
obstructions.” Nextel Commc’ns of the Mid-Atl., Inc. v. Town of Brookline, Mass., 520
F. Supp. 2d 238, 242 (D. Mass. 2007). When a call is placed on a cell phone, the phone will
connect to the cell site with the strongest signal. See Ameritech Mobile Commc’ns, Inc. v.
Dep’t of Revenue, 214 Wis. 2d 592, 571 N.W.2d 924 (Ct. App. 1997) (“When a mobile unit
owner wishes to place a call, the mobile unit scans the signals sent out by the various cell
sites and selects the strongest signal.”). “As a cell phone user moves from place to place, the
cell phone automatically switches to the tower that provides the best reception.” In re
Application of U.S. for an Order for Disclosure of Telecomms. Records & Authorizing the
Use of a Pen Register & Trap & Trace, 405 F. Supp. 2d 435, 436-37 (S.D.N.Y. 2005). See
also Nextel Commc’ns of Mid-Atl., Inc. v. Town of Wayland Mass., 231 F. Supp. 2d 396, 399
(D. Mass. 2002) (“As customers move throughout the service area, the transmission from the
portable unit is automatically transferred to the closest Nextel facility without interruption
in service, provided that there is overlapping coverage from the cells.”).
9
A cell phone can be tracked when it is “used to make a call, send a text
message, or connect to the Internet–or when they take no action at all, so long as the phone
is not turned off.” Earls, 214 N.J. at 577, 70 A.3d at 637. There are three basic methods
used to track cell phone signals: (1) Global Positioning System (GPS) technology; (2)
real-time cell site data; and (3) historical cell site data. Aaron Blank, The Limitations and
Admissibility of Using Historical Cellular Site Data to Track the Location of a Cellular
Phone, 18 Rich. J.L. & Tech. 3, 9 (2011). GPS is a satellite-based navigation system used
to determine location, velocity, and time. Koppel, Warranting A Warrant, 64 U. Miami L.
Rev. at 1063-64. See also Alexandra Wells, Ping! The Admissibility of Cellular Records to
Track Criminal Defendants, 33 St. Louis U. Pub. L. Rev. 487, 489-90 (2014) (“[A] receiver
on the satellite picks up a signal delivered from a GPS chip in the cellular phone. The
delivery speed is then converted into distance giving a very accurate reading of the cell
phone’s location.”). The distinction between real-time cell site data and historical cell site
data has been described as follows:
[B]oth real-time cell site data and historical cell site data use
cellular technology to locate the cell user. While they are
extremely similar, they differ in the time the signal, or “ping,”
received and recorded by a tower is observed. Real-time cell
site data is obtained through viewing the cell phone’s activity
and signals in real time, meaning at that instant. Thus, this
largely happens when police officers survey a particular cell
phone’s activity. On the other hand, historical cell site
data . . . is information obtained after the cell phone’s activity is
recorded using the cell companies’ records of that activity.
10
Wells, Ping!, 33 St. Louis U. Pub. L. Rev. at 490. See also United States v. Myles, No.
5:15-CR-172-F-2, 2016 WL 1695076, at *6 (E.D.N.C. Apr. 26, 2016) (“Historical cell site
data refers to the acquisition of cell site data for a period retrospective to the date of the
order. . . . Real-time data, on the other hand, . . . shows where the phone is presently located
through the use of GPS or precision location data.”); United States v. Jones, 908 F. Supp. 2d
203, 207 (D.D.C. 2012) (“The information is identical regardless of whether it is obtained
historically or prospectively.” (internal quotations omitted)).
In this proceeding, we are concerned only with historical cell site data. As
noted above, cell phone service providers create and maintain records of cell phone
interaction with cell phone towers. See United States v. Johnson, No. 14-CR-00412-THE,
2015 WL 5012949, at *6 (N.D. Cal. Aug. 24, 2015) (“Carriers keep records of these
connections for each customer. . . . This is referred to as ‘historical cell site’ data, and can
be used to identify a customer’s general location at a given time.”). It has been observed that
a “cell service provider collects and stores historical cell site data for its own business
purposes, perhaps to monitor or optimize service on its network or to accurately bill its
customers for the segments of its network that they use.” In re U.S. for Historical Cell Site
Data, 724 F.3d 600, 611-12 (5th Cir. 2013). “That same information makes it possible to
identify at least the general location of a cell phone at the time the phone connects to a
tower.” State v. Simmons, 143 A.3d 819, 825 (Me. 2016).
11
It has been recognized that “courts that have been called upon to decide
whether to admit historical cell-site analysis have almost universally done so.” United States
v. Hill, 818 F.3d 289, 297 (7th Cir. 2016). However, “courts that have addressed whether
testimony which purports to locate people based on cellular data is lay or expert testimony
are divided.” Collins v. State, 172 So. 3d 724, 739 (Miss. 2015). In a majority of reported
cases, experts were used to provide testimony of historical cell site data; while in a minority
of reported cases, lay testimony was allowed in some circumstances. For example, the
Seventh Circuit has indicated “that testimony about historical cell-site analysis is expert
testimony.” United States v. Hill, 818 F.3d 289, 296 (7th Cir. 2016). See also United States
v. Reynolds, 626 F. App’x 610, 614 (6th Cir. 2015) (expert used to testify about historical cell
site data). Accord United States v. Schaffer, 439 Fed. Appx. 344, 347 (5th Cir. 2011); United
States v. Yeley-Davis, 632 F.3d 673, 684 (10th Cir. 2011); United States v. Frazier, No.
2:15-CR-044-GMN-GWF, 2016 WL 4994956, at *3 (D. Nev. Sept. 16, 2016); United States
v. Elima, No. SACR 16-00037-CJC, 2016 WL 3546584, at *2 (C.D. Cal. June 22, 2016);
United States v. Serrano, No. 16-CR-169 (WHP), 2016 WL 3745648, at *3 (S.D.N.Y. June
9, 2016); United States v. Cervantes, No. 12-CR-00792-YGR, 2015 WL 5569276, at *2
(N.D. Cal. Sept. 22, 2015); United States v. Johnson, No. 14-CR-00412-THE, 2015 WL
5012949, at *6 (N.D. Cal. Aug. 24, 2015); United States v. Pembrook, 119 F. Supp. 3d 577,
596 (E.D. Mich. 2015); United States v. Freeman, No. 06-20185, 2015 WL 2062754, at *4
(E.D. Mich. May 4, 2015); United States v. Mack, No. 3:13-CR-00054 MPS, 2014 WL
126474329, at *2 (D. Conn. Nov. 19, 2014); Jimenez v. Walker, No. C 08-05489 YGR PR,
2012 WL 4051124, at *17 (N.D. Cal. Sept. 13, 2012); United States v. Evans, 892 F. Supp.
2d 949, 957 (N.D. Ill. 2012); United States v. Allums, No. 2:08-CR-30 TS, 2009 WL 806748,
at **2-3 (D. Utah Mar. 24, 2009); People v. Hollinquest, 190 Cal. App. 4th 1534, 1544, 119
Cal. Rptr. 3d 551, 559 (2010); Pullin v. State, 272 Ga. 747, 748-49, 534 S.E.2d 69, 71
(2000); People v. Fountain, 62 N.E.3d 1107, 1126 (Ill. App. Ct. 2016); State v. Benson, No.
15-1895, 2016 WL 7393891, at *3 (Iowa Ct. App. Dec. 21, 2016); State v. Marinello, 49 So.
3d 488, 509 (La. Ct. App. 2010); Wilder v. State, 991 A.2d 172, 179 (Md. Ct. Spec. App.
2010); Burnside v. State, 352 P.3d 627, 637 (Nev. 2015); People v. Swint, 20 N.Y.S.3d 294(N.Y. Crim. Ct. 2015); Commonwealth v. Latham, No. 2702 EDA 2010, 2014 WL 10979805,
at *22 (Pa. Super. Ct. Mar. 17, 2014); Holder v. State, No. 05-15-00818-CR, 2016 WL
4421362, at *16 (Tex. App. Aug. 19, 2016). The court in Collins, supra, explained the
necessity for requiring experts to inform the jury of historical cell site data:
[W]hile the technology underlying cell identification is not
extremely difficult to understand, utilizing cell identification to
locate a person does require specialized knowledge regarding
such technology–namely, knowledge regarding the various
antennas on cell sites and the cell site coverage range and how
those interact to determine the entire area in which a cell phone
user might have been located while making a cell phone call.
Illustrating that cell identification requires specialized
knowledge are the facts that Detective Sims had to take a
sixteen-hour course on how to use cellular technology in law
enforcement and that he used specialized software acquired at
this course to determine the locations of Collins and Jenkins on
the night of Jenkins’s murder.
13
Collins, 172 So. 3d at 741. A commentator addressed the issue more thoroughly as follows:
[The court in Wilder v. State, 991 A.2d 172 (Md. Ct. Spec. App.
2010)] was correct to draw a line forcing courts to admit cellular
records only through expert testimony. This is true for two
significant reasons: first, the technology is specialized,
scientific, and technical, and therefore is expert testimony; and
second, lay witnesses are without sufficient information for the
defense to cross-examine. First, and most significantly, tracking
defendants through cellular records and cell site data is in fact
specialized, scientific, and technical information. Cellular
towers themselves are highly technical and are advancing.
Furthermore, how cell towers work to create historical cell site
data, and therefore a location of a caller, is even more
complicated and requires a fundamental understanding of
cellular towers’ functionality. While many lay persons own cell
phones, it is unlikely they understand how cellular signals are
transmitted to cell towers. Further, it is unlikely an average
person either knows or understands how that cell tower
transmits and records the signal. Finally, the average cell phone
user is certainly not going to know the vast list of factors
influencing how their cell phone pings to a specific tower.
Wells, Ping!, 33 St. Louis U. Pub. L. Rev. at 516.
A case illustrating the rejection of the use of lay testimony to provide the jury
with evidence of historical cell site data is State v. Patton, 419 S.W.3d 125 (Mo. Ct. App.
2013). In Patton, the defendant was convicted of first-degree murder, first-degree burglary,
and armed criminal action. On appeal, the defendant argued that the trial court committed
reversible error in allowing the prosecutor to use a lay witness to provide historical cell site
data. The appellate court found that it was error to use lay testimony, but that the error was
14
harmless in light of the evidence of the defendant’s guilt. The opinion addressed the need
for expert testimony to inform the jury of historical cell site data as follows:
We recognize that cellular phones are a subject of
everyday experience, and that little technical knowledge is
required to understand that a phone will connect to the cell site
with the strongest signal. Yet to opine, as the State’s lay witness
did here, that the strongest signal generally comes from the
closest site is misleadingly simple. In fact, it is impossible to
determine from historical cell site data alone that a phone was
closest to the cell site processing the call, and at best these
records only indicate that a phone was located somewhere
within a cell site’s geographic coverage area. A cell phone may
be in range of several sites simultaneously, and a multitude of
factors influence which site among them will have the strongest
signal. The technical features of the cell site, geography, and
the workings of the cell phone itself may result in connections
from as far away as thirty miles or as close as thirty feet. Thus,
knowing the location of the cell site to which a phone connects
permits an expansive range of inferences as to where the phone
actually is. We think that drawing such an inference without the
aid of specialized experience or knowledge in the field of
cellular communications comes too close to mere speculation.
Here, the State introduced evidence of the locations of
the cell sites used by Patton’s phone in order to place Patton
near the crime scene at the time of the shootings. . . . To narrow
down the area in which Patton’s phone must have been to have
connected to a particular cell site—i.e., to proffer testimony
actually probative of whether Patton was in one area rather than
the other—required analysis of the many variables that influence
cell site signal strength. Such analysis amounts to opinion
testimony that is properly the province of an expert. Thus, we
hold that the trial court erred by failing to require an expert
witness to testify as to the location of Patton’s phone in relation
to the cell sites to which it connected.
Patton, 419 S.W.3d at 131-32 (citations omitted).
15
The decision in State v. Payne, 440 Md. 680, 104 A.3d 142 (2014), addressed
the complexity of historical cell site data analysis. In Payne, two co-defendants were tried
together and convicted of first-degree felony murder, kidnapping, and use of a handgun in
the commission of a felony. One of the issues raised on appeal was that a police officer
rendered an opinion as a lay witness as to the location of the cell towers through which the
defendants’ cell phones connected on the night of the murder and their location relative to
the crime scene. The defendants argued that this opinion had to be rendered by an expert.
The appellate court agreed as follows:
In the present case the State asserts that . . . Detective
Edwards did not render an opinion as to the location of Payne’s
and Bond’s cell phones and that he merely read Sprint Nextel’s
business records and followed its directions in interpreting the
data. We disagree. Detective Edwards engaged in a process to
derive his conclusion that Payne’s and Bond’s cell phones
communicated through the Menlo Park and Balmoral Towers
cell towers that was beyond the ken of an average person; his
conclusions regarding the communication path also required that
he be qualified as an expert witness. Although the State urges
that a “layperson with the same phone records and instructions
could have determined the location of the cell
sites”. . . , additional training and experience were required to
parlay the process from which Detective Edwards derived the
communication path of each call.
A Call Detail Record contains a string of data unfamiliar
to a layperson and is not decipherable based on “personal
experience”. . . . Detective Edwards, however, apparently relied
on his experience to hone in on the entries in the Call Detail
Records “pertinent” to the case. To understand, furthermore, the
technical language of the entries in a Call Detail Record so that
he could eliminate “extraneous” data in the records, Detective
16
Edwards had to have relied on “knowledge, skill, experience,
training or education.” . . .
Once Detective Edwards had culled the records, he
further relied on his knowledge and experience to understand
the significance of a “LAC ID” and “Cell ID” and how they
related to identifying a particular cell tower amongst a cellular
provider’s records. Detective Edwards’s testimony was that of
an expert, because Call Detail Record entries are not entries
typical of a cell phone bill where a juror could “rely upon his or
her personal experience” to understand their meaning. . . .
Detective Edwards needed to be qualified as an expert in
order to also opine regarding the Menlo Drive and Balmoral
Towers cell towers. Using the data he derived from his
experience and expertise, Detective Edwards urged that he had
determined the location of the cell towers through which
Payne’s and Bond’s cell phone connected on the night of the
murder and their location relative to the crime scene, which only
an expert could derive, based upon the fact that a cell phone may
connect to several towers during a call which may not be
recorded.
Payne, 440 Md. at 700-02, 104 A.3d at 154-55 (footnote and citations omitted).
As previously noted, a few courts have treated historical cell site data analysis
as proper lay testimony under certain conditions. See, e.g., United States v. Feliciano, 300
F. App’x 795 (11th Cir. 2008) (expert not required); Perez v. State, 980 So. 2d 1126(Fla. Dist. Ct. App. 2008) (same); State v. Fleming, 286 P.3d 239 (Kan. Ct. App. 2012)
(same); State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006) (same), abrogated on other
grounds by State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010); State v. Daniel, 57 N.E.3d
1203 (Ohio 2016) (same). The decision in United States v. Evans, 892 F. Supp. 2d 949 (N.D.
17
Ill. 2012), provides a good example of the circumstances in which some courts permit a lay
witness to testify about historical cell site data. In Evans, the prosecution sought to call an
FBI special agent to testify about the operation of cellular networks and how to use historical
cell site data to determine the general location of a cell phone at the time of a particular call.
The agent relied upon what is called the “granulization” theory12 to opine that phone calls
placed from the defendant’s cell phone could have come from the building where the victim
was held for ransom. The trial court held an evidentiary hearing to determine whether the
proposed evidence and analysis were admissible as expert testimony or lay testimony. In
determining the admissibility of the proposed testimony, the trial court ruled as follows:
Lay witness testimony is admissible under Rule 701
when it is rationally based on [a] witness’s perception or based
on a process of reasoning familiar in everyday
life. . . . Understanding how the aforementioned factors affect a
cell phone’s ability to connect a particular tower, however,
cannot be said to be within the perception of the untrained
layman. Rather, this type of understanding demands scientific,
technical, or other specialized knowledge of cellular networks
and results from a process of reasoning which can be mastered
only by specialists in the field. . . . Special Agent Raschke may
therefore provide lay opinion testimony concerning (1) the call
data records obtained for Evans’s phone and (2) the location of
12
See United States v. Pembrook, 119 F. Supp. 3d 577, 596-97 (E.D. Mich.
2015) (“[T]he theory of granulization involved (1) identifying the cell tower, sector, and
sector-coverage direction used by the phone during the relevant time period; (2) estimating
the range of each [sector’s] coverage based on the proximity of the tower to other towers in
the area, and (3) predicting where the coverage area of one tower will overlap with the
coverage area of another.” (internal quotations and citation omitted)).
18
cell towers used by Evans’s phone in relation to other locations
relevant to the crime; but if he wishes to testify concerning (1)
how cellular networks operate, i.e., the process by which a cell
phone connects to a given tower or (2) granulization theory he
must first meet the demands of Rule 702 and Daubert.
Evans, 892 F. Supp. 2d at 953-54 (footnotes, internal quotations, and citations omitted).
It has been recognized that the decision in Evans, and the position of courts that
follow Evans, attempts to make a distinction “between simply conveying the cellular records
to the jury and explaining what those records then mean.” Wells, Ping!, 33 St. Louis U. Pub.
L. Rev. at 511. See State v. Wyman, 107 A.3d 641, 648 (Me. 2015) (“Specialized knowledge
is not necessary . . . when a witness conveys only the factual information displayed on cell
phone billing records.”). We reject the minority approach to this issue because lay
“witnesses . . . not only read the records to the jury, but the[y] dr[a]w the ultimate conclusion
that the records could show the caller was in a specific location[.]” Wells, Ping!, 33 St.
Louis U. Pub. L. Rev. at 511. Consequently, we now hold that a witness must be qualified
as an expert under Rule 702 of the West Virginia Rules of Evidence in order to present
evidence of cell phone historical cell site data.
In the instant proceeding, as previously noted, the State called Deputy Christian
to use historical cell site data to inform the jury of the location of cell phones belonging to
Ms. Johnson, Mr. Smith, Mr. Garcia, Mr. Adams, and Ms. Grant, in relation to the crime
19
scene at the time of the murder. The complexity of Deputy Christian’s testimony may be
gleaned from the following responses to questions on direct examination:
Q. Are all these records from a particular carrier?
A. Yes, ma’am, I believe all records in this case were
obtained through Sprint PCS, ma’am.
....
Q. When Sprint provides that information to you, do they
provide certain data so we can understand what those phone
messages mean or how they relate to one another?
A. When we do a search warrant for cellular records, we
typically will ask for a couple of additional items. We will
typically ask for a definition page. As cell phone companies
change definitions in their record keeping, we want to get the
most current definition page as it related to the case we are
working at the time.
....
Q. So the jury can understand, what really is the
definition page?
A. Basically, it outlines how to interpret their call detail
reports. It breaks down specifically things that you will see on
the call detail report. It is kind of like a glossary of terms. Then
it also has other information contained in there as far as where
the tower switches may be located, the NEID numbers, the
vendor, that sort of thing, is also attached, I believe.
Q. In this instance, I am going to ask you just the records
to identify them at this point, did you also ask for—let me get
this correct, did you also ask for NEID number?
20
A. Ma’am, the NEID number I believe comes as part of
the cellular records one of the things that the company uses as
internal tracking as far as their records are concerned.
....
Q. The phone records in this case specifically referring
to Tulsa Johnson’s phone, did you notice anything in general
about—let me ask you this, are there references to text messages
in those records?
A. Yes, ma’am. Phone records, anything with a zero
duration in the time portion of it, is generally to my training and
experience a text because there’s no actual voice time to print on
the record. It just shows that there is zero duration which
typically is a text message.
....
Q. Were you able to determine in the records of Mr.
Garcia, Mr. Smith and Ms. Johnson as to whether or not what
time zone was used for those records?
A. Actually, ma’am, I had to contact Sprint specifically
for that question. I was advised by personnel from Sprint that
voice data, actual talking on the phone, is recorded in Central
Standard Time and that text messaging is recorded in Eastern
Standard Time.
Q. In this instance referring specifically to Ms. Johnson’s
telephone, on the date of September the 14th of 2014, did you
notice anything that was different in her phone records from the
totality of the records?
A. Yes, ma’am. If you could give me one moment here.
Q. Sure.
A. Yes, ma’am. From beginning on Page 1, I believe I
see one inbound call and the remainder are texts. On page 2 it
21
appears to be all texts. On page 3 it’s all texts except for I
believe there is a couple of inbound phone calls here. From the
time period of 11:33 to 12:53 there is no activity on the phone.
....
Q. Now, I notice that Ms. Johnson’s phone has another
call that you believe is relevant to this case at some point
immediately after that that was not to Ms. Grant; is that right?
A. At 10:56:48, ma’am, there was a text I believe to Mr.
Smith’s number.
Q. Then what happens?
A. There is another period of texts to numbers that
weren’t related to our case. Again, at 11:09 there was a text
from Mr. Smith. At 11:10:22 there was a text to him. There
was another text which wasn’t relevant. Then from 11:10:31 to
11:13:38 there is a block of exchanges between Mr. Smith and
Ms. Johnson.
....
Q. Now, approximately you went through these phone
records and you were interested in them for one other reason; is
that correct?
A. Yes, ma’am.
Q. Tell us what that is, please.
A. With phone records, in conjunction with the
additional information that we received from the phone
companies, we can use the NEID and repoll numbers to
determine towers when it comes to conversations, voice
conversations, and we can with those cell phone records
determine where the towers are, has GPS coordinates of the
tower, and the tower identifier it shows the sector with the
specific tower that was hit on the phone records. Using that we
22
can then request additional information from the company and
we can map where the towers were at and the side of the tower
which a phone touched in order to make a call.
....
Q. Now, one of the series of records that we talked about
in this case you started describing to the jury is the NEID
records. What are NEID records?
A. Ma’am, that’s Sprint’s definition page. It says NEID
this reflects which network element handled the call.
Q. Now, as I understand it you have done some training
and things related to how to deal with that data; is that correct?
A. I have had a couple training classes, yes, ma’am, the
latest of which was a cell phone mapping course.
....
Q. How do we know looking at this general thing,
doesn’t appear to be any dates and times on it, how do we know
this NEID matches up with any of the phones that we are talking
about here today?
A. When you look at the records that we have, ma’am,
when it comes to the voice calls, they have, for example, I have
Mr. Smith’s record in front of me, at 12:53:12 between that time
and 12:53:45 it shows that there was a duration of a 33 second
call. Based on my training and information that I have received,
the NEID of the tower related is 63 repoll number 120 and under
first cell it shows 30283. In this case based on the definitions
page that would indicate to me that it was sector three of tower
283. The first cell and last cell typically would depict what
tower was contacted or accessed first and the second cell would
be what tower was contacted or accessed last during the duration
of the call. Due to the short duration of the call the same tower
was contacted first and last in this case.
23
....
Q. Now, one of the other records that I understand that
you are required to look at is something that is called
beamwidth?
A. Yes, ma’am.
Q. What’s beamwidth?
. . . .
A. I don’t think it’s reflected in the definition page, as I
recall. Based on the information that I received, the beamwidth
is—an engineer can speak more in depth about this—basically
from the tower, the width of the signal that one side of it would
emit, so each side has its own specific beamwidth.
Q. How do you tell that from the records that we have?
A. Ma’am, once we determine which towers that we
specifically need beamwidth from, then there had to be an
additional search warrant issued for those records to the
company. The company then returned with the sector I believe
it had without looking directly back at it the sector, Azimuth and
the beamwidth of each side of each tower that we requested.
....
Q. You were able to get and perform or to map in some
instances where these towers were located; is that correct?
A. That is correct, ma’am.
. . . .
Q. Did you also draw for us a map of where those cell
towers were located?
A. I did, ma’am.
24
....
Q. Now, this particular tower that we are representing,
you have taken a photograph of that; is that right?
A. Yes, ma’am. Part of my training whenever we plot
towers on a map, we also go out and physically locate the tower
just to make sure that the information all coincides with each
other. Typically, I will take a photograph of that tower as an
exhibit, yes, it does actually exist.
....
Q. How do you know that tower longitudinally and
latitudely that tower relates to the cellular phone calls?
A. Ma’am, I will have to flip back and forth, so I
apologize. On the cellular record, ma’am, itself in this case, I
am going to use the record for Mr. Smith, again, the same call
that I believe I outlined before. It says under the first cell and
last cell (302) 833-0283. By the Sprint definitions that would
indicate that the first number would be the sector, the tower,
which the phone call accessed, and the 0283 in this case would
be the tower number. When you look at the records that we
received, the towers are listed on the cell number all the way
down the side. You will come down to number 283, it has an
NEID of 63, the repoll of 120 which matched what is also on the
record of 63 and 120. That provides me with a latitude and
longitude coordinate which I program into the mapping or click
into the mapping program under the define feature and it will
then basically drop a pin to where that would be located. Now,
I also back that up–
....
Q. The next tower in this instance, where is that tower
located?
A. That’s an antenna that is located on the side of I
believe a grain silo or some sort of farm silo and that is in
25
Summer Hill Subdivision adjacent to the Air National Guard
base, ma’am.
Q. What time was the call received there or the text?
A. There are three calls notated on tower 283 sector
three, one at 12:39 from Mr. Smith’s or, I’m sorry, Mr. Garcia’s
phone with a received call from Ms. Grant. There was a call
from Mr. Smith’s phone to Ms. Grant’s phone at 12:53:12 that
lasted 33 seconds. Then there was a call from Mr. Smith’s
phone outbound at 12:53:48 that began on that tower, ma’am.
....
Q. How far is that tower approximately to the site of
Technology Drive, if you can estimate for us?
A. An estimation would be I would estimate less than
two miles.
....
Q. This next one, please.
A. That would be the tower located at tower number 14
which would be at the end of Washington Street between Tabler
Station and Inwood, ma’am.
Q. Again, what time was that call placed or is there a call
noted there?
A. Tower 14 sector three advised Mr. Garcia’s phone
received a call at 11:52 a.m. from Ms. Grant’s cell phone.
Q. And the estimated time of the murder is what?
A. Between–again, I’m sorry I have a lot of numbers
rolling around in my head, let me look back, between 12:45 and
1:15.
26
Q. The murder site in this particular instance is how far
from that tower, approximately?
A. I would say approximately no more than five miles.
Q. That is 11:52; is that correct?
A. Yes ma’am. Actually, it would be between—it would
actually be approximately three miles because between Exit 5
and Exit 8 is a three mile range and that tower is probably a half
mile or so from Exit 5.
Q. That map is the location of those towers, that’s what
we have mapped out for the jury today?
A. That’s correct.
(Emphasis added).
The State argues that Deputy Christian’s testimony was admissible lay
testimony because the parties stipulated to the introduction of the cell phone records. The
stipulation, as read to the jury by the trial court, merely provided that “all cellular call records
and NEID cell phone tower records are admitted without objection and may be used by any
party without appearance of a records custodian.” This stipulation does not address how the
information contained in those records would be presented to the jury. That is, by lay
testimony or expert testimony. The State characterizes Deputy Christian’s testimony about
the historical cell site data as merely testimony “to facts as gleaned from the stipulated to
records.” This characterization of Deputy Christian’s testimony is an understatement. On
at least four occasions Deputy Christian informed the jury that he was able to testify about
27
the stipulated records based upon his “training.” In other words, Deputy Christian implicitly
admitted that he could not testify about historical cell site data without first having “a couple
[of] training classes . . . , the latest of which was a cell phone mapping course.”
We need not belabor the point. Consistent with our holding, we find that the
trial court committed error in permitting Deputy Christian to testify about historical cell site
data as a lay witness. It is abundantly clear that Deputy Christian’s testimony was “based on
scientific, technical, or other specialized knowledge within the scope of Rule 702.” Rule
701(c). See 2 Louis J. Palmer, Robin Jean Davis & Franklin D. Cleckley, Handbook on
Evidence for West Virginia Lawyers § 701.05, at 25 (6th ed. 2015) (“Rule 701 forbids the
admission of expert testimony dressed in lay clothing[.]”). Although we find error regarding
such testimony, the record is clear in demonstrating that the error was harmless beyond a
reasonable doubt. See Patton, 419 S.W.3d at 132 (“Thus, we cannot say that Patton suffered
prejudice from the admission of the cell site location evidence.”).
In Syllabus point 7 of Torrence v. Kusminsky, 185 W. Va. 734, 408 S.E.2d 684(1991), we explained that “[a] judgment will not be reversed because of the admission of
improper or irrelevant evidence when it is clear that the verdict of the jury could not have
been affected thereby.” Accord State v. McKinley, 234 W. Va. 143, 161, 764 S.E.2d 303,
321 (2014). We have summarized our harmless error analysis as follows:
28
Even when a trial court has abused its discretion by admitting or
excluding evidence, the conviction must be affirmed unless a
defendant can meet his or her burden of demonstrating that
substantial rights were affected by the error. . . . In other words,
a conviction should not be reversed if we conclude the error was
harmless or unimportant in relation to everything else the jury
considered on the issue in question. . . . Instead, this Court will
only overturn a conviction on evidentiary grounds if the error
had a substantial influence over the jury. This reasoning
suggests that when the evidence of guilt is overwhelming and a
defendant is allowed to put on a defense, even if not quite so
complete a defense as he or she might reasonably desire, usually
this Court will find the error harmless. If, however, the error
precludes or impairs the presentation of a defendant’s best
means of a defense, we will usually find the error had a
substantial and injurious effect on the jury. When the
harmlessness of the error is in grave doubt, relief must be
granted. . . .
State v. Blake, 197 W. Va. 700, 705, 478 S.E.2d 550, 555 (1996) (internal quotations and
citations omitted). We have stated the test for harmless error succinctly as follows:
Where improper evidence of a nonconstitutional nature
is introduced by the State in a criminal trial, the test to determine
if the error is harmless is: (1) the inadmissible evidence must be
removed from the State’s case and a determination made as to
whether the remaining evidence is sufficient to convince
impartial minds of the defendant’s guilt beyond a reasonable
doubt; (2) if the remaining evidence is found to be insufficient,
the error is not harmless; (3) if the remaining evidence is
sufficient to support the conviction, an analysis must then be
made to determine whether the error had any prejudicial effect
on the jury.
Syl. pt. 2, State v. Atkins, 163 W. Va. 502, 261 S.E.2d 55 (1979).
29
In the instant proceeding, the evidence that the State improperly introduced
through Deputy Christian inferentially informed the jury that Ms. Johnson was in the vicinity
of the area where Mr. Garcia’s body was found. No other reasonable conclusion could have
been reached by the jury based upon Deputy Christian’s historical cell site data analysis.
However, this evidence added nothing to the case that the jury did not learn from Ms. Grant
and Mr. Adams.
During the testimony of Ms. Grant, she informed the jury that she was texting
and talking to Mr. Garcia while she was riding with Ms. Johnson. Ms. Grant testified that
Ms. Johnson’s vehicle and Mr. Garcia’s vehicle were both parked at ROCS gas station as the
initial meeting place. Ms. Grant informed the jury that Ms. Johnson and Mr. Garcia were
inside Mr. Adams’ apartment together. The jury also was informed by Ms. Grant that Ms.
Johnson and Mr. Smith left the apartment and accompanied Mr. Garcia to his vehicle.
During direct examination by the State, Ms. Grant informed the jury of what happened when
Ms. Johnson and Mr. Smith returned to Ms. Johnson’s vehicle:
Q. What happened when they came back? Did [Mr.
Garcia] come back with them?
A. No.
Q. Did they come back in [Mr. Garcia’s] truck?
A. No.
Q. What happened when they got back?
30
A. She said she killed him.
Q. Who said?
A. Tulsa.
Q. What exactly did—
A. She said she killed that mother fucker.
....
Q. Were they in a vehicle of some sort?
A. No, they were on foot.
Q. Were they walking, running, what were they doing?
A. Running.
Q. And you said Tulsa made that comment, did [Mr.
Smith] make a comment at all?
A. No.
Q. Did he say anything?
A. No, he was just wiping the gun off, and he had it like
pointed, he was behind me, and I asked him, please don’t point
that gun towards me, and he said, it’s not loaded, there’s no
bullets in there.
Q. Do you remember what the gun looked like?
A. I only seen the tip of it for one hot second. I turned
around to see what I could see, and that’s all I seen was a red
bandana with him wiping it off.
Q. Do you know where the gun went?
31
A. No, it went with them, that’s all I know.
Q. At some point did Michael Garcia come back at that
point?
A. No.
Q. Did you ask where Michael was?
A. I didn’t have to because they were talking about it.
Q. What do you mean, they were talking about it?
A. She–they was talking about cleaning up everything,
there was nothing left behind, they said they cleaned up all of
the evidence.
Q. Then what happened.
A. They dropped me off.
As previously noted, Mr. Adams testified that Ms. Johnson was in his
apartment with Mr. Garcia, Mr. Smith, and Ms. Grant. Mr. Adams testified that Ms. Johnson
told him that she was going to take Mr. Garcia’s drugs from him. Mr. Adams stated that he
saw Ms. Johnson and Mr. Smith get into Mr. Garcia’s vehicle, and that they drove off in the
direction of where Mr. Garcia’s body was found. Mr. Adams informed the jury that within
a half hour or so after they left his apartment, he saw Mr. Garcia’s body lying on a gravel
road near his apartment.
32
In view of the evidence by Ms. Grant and Mr. Adams, we have no doubt that
the jury would have found Ms. Johnson guilty beyond a reasonable doubt without the
improperly admitted historical cell site data analysis by Deputy Christian. Moreover, the
historical cell site data analysis was, at best, cumulative of eyewitness testimony by Ms.
Grant and Mr. Adams as to where Ms. Johnson was in relation to the crime scene. Therefore,
the evidence could not have had any prejudicial impact on the jury.
B. The Prosecutor Made Remarks Regarding
DNA Evidence During Closing Arguments
The next issue raised by Ms. Johnson is that the prosecutor made improper
remarks about DNA evidence that implicated Mr. Smith. The State contends that the
prosecutor’s comments about the DNA evidence were proper. The State also notes that Ms.
Johnson does not have standing to raise the issue, and she failed to object to the argument
during the trial.
We have held that “[a] judgment of conviction will not be set aside because of
improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the
accused or result in manifest injustice.” Syl. pt. 5, State v. Sugg, 193 W. Va. 388, 456 S.E.2d
469 (1995). In Syllabus point 6 of Sugg, we set out the following test for reviewing
comments by a prosecutor:
Four factors are taken into account in determining
whether improper prosecutorial comment is so damaging as to
33
require reversal: (1) the degree to which the prosecutor’s
remarks have a tendency to mislead the jury and to prejudice the
accused; (2) whether the remarks were isolated or extensive; (3)
absent the remarks, the strength of competent proof introduced
to establish the guilt of the accused; and (4) whether the
comments were deliberately placed before the jury to divert
attention to extraneous matters.
Id.In the instant case, the State presented expert testimony that DNA found on Mr.
Garcia’s vehicle was “consistent with the DNA profile of Vincent Smith.” The expert opined
that Mr. Smith could not “be excluded as the source of the DNA identified on
the . . . sample.” Based upon what can be reasonably inferred from Ms. Johnson’s brief, she
complains that the following statement by the prosecutor was improper:13
Remember one thing about the DNA, DNA sometimes is
a great thing in a case and sometimes it’s confusing. It’s not
confusing here for this reason. We know Vincent Smith was in
contact with Michael Garcia’s car. How do you know
that? . . . In this instance, the DNA expert in this case cannot
exclude Vincent Smith. She said he had nine out of 15 loci,
remember that, she said that occurs in 1.69 billion people. What
a coincidence.
13
The brief is simply not clear on the exact language Ms. Johnson complains
about.
34
Ms. Johnson contends that the above comment improperly informed the jury that the DNA
evidence “identified [Mr. Smith] because one in 12.3 billion was too remote to be a
coincidence.”14
Assuming, for the sake of argument, that Ms. Johnson has standing to raise this
issue,15 she waived the issue by failing to object at the trial court level. Our law is quite clear
in holding that, “[w]ith regard to the closing arguments statements to which defense counsel
did not object, . . . the absence of an objection at trial waives the right to complain on
appeal.” State v. Hager, 204 W. Va. 28, 40, 511 S.E.2d 139, 151 (1998). See also State v.
Garrett, 195 W. Va. 630, 643 n.22, 466 S.E.2d 481, 497 n.22 (1995) (“Appellant’s trial
counsel failed to object . . . to the State’s closing argument, thereby failing to preserve the
error, if it was error, for appellate review.”). In Syllabus point 3 of O’Neal v. Peake
Operating Co., 185 W. Va. 28, 404 S.E.2d 420 (1991), we explained that “[w]here objections
were not shown to have been made in the trial court, and the matters concerned were not
14
The prosecutor appears to have misspoken in referring to “1.69 billion
people.” The DNA expert opined that the DNA match would “occur randomly in a
population one in 12.3 billion unrelated individuals.”
15
See People v. Jenkins, 22 Cal. 4th 900, 965, 997 P.2d 1044, 1089 (2000) (“A
defendant lacks standing to complain of the violation of a third party’s Fifth Amendment
privilege against self-incrimination.”); Commonwealth v. Albert, 51 Mass. App. Ct. 377, 379,
745 N.E.2d 990, 993 (2001) (“Albert’s appeal can be disposed of simply on the basis that he
has no standing to raise the invalidity of Shaw’s arrest and the seizure of drugs.”); State v.
Valenti, 772 A.2d 127, 130 (R.I. 2001) (“Thomas, of course, lacks standing to raise any
alleged violation of the codefendant Joseph’s constitutional rights.”).
35
jurisdictional in character, such objections will not be considered on appeal.” Moreover,
“[g]enerally, failure to join in the objection or motion of a codefendant constitutes a waiver
of the issue on appeal.” People v. Wilson, 44 Cal. 4th 758, 793, 187 P.3d 1041, 1062 (2008)
(internal quotations and citation omitted). See also Evans v. State, 174 Md. App. 549, 566,
922 A.2d 620, 630 (2007) (“[A] bedrock principle of Maryland law is that a defendant may
not rely on an objection made by a codefendant for the purpose of raising an appeal as to that
issue.”); State v. Williams, No. 21840, 2004 WL 1836731, at *4 (Ohio Ct. App. Aug. 18,
2004) (“[R]egardless of whether the State’s comments during closing argument shifted the
burden of proof, this Court finds that Appellant has waived this argument on appeal.
Although Mr. Riley’s trial counsel timely objected after the State made these comments, the
record shows that Appellant’s trial counsel did not object. As pointed out by the State in
their appellate brief, this Court has held that a co-defendant’s objection does not preserve this
issue on appeal.”).16 We consequently find that any objections Ms. Johnson has to the
statements made by the prosecutor during closing argument were waived through her failure
to object at the trial.17
16
It should be noted that in limited circumstances appellate courts allow a
defendant to raise an issue that was objected to only by a co-defendant. See United States
v. Baker, 458 F.3d 513, 517 (6th Cir. 2006) (“[T]he government acknowledges that in certain
circumstances courts have excused such a failure to object in light of an objection by a
codefendant.”); United States v. Hernandez, 921 F.2d 1569, 1582 (11th Cir. 1991) (“[W]e
assume that the objection to the testimony is preserved for both Rogers and Gilmore,
although only Tape’s counsel, Baranowicz, objected at trial.”).
17
We note that Mr. Smith objected to the prosecutor’s closing argument on the
(continued...)
36
IV.
CONCLUSION
In view of the foregoing we affirm Ms. Johnson’s conviction and sentence for
felony murder and conspiracy to commit robbery.
Affirmed.
17
(...continued)
DNA issue and raised the issue in his appeal, which was heard by the Court on the same day
as Ms. Johnson’s appeal. We found no merit to the issue as properly raised in Mr. Smith’s
appeal. See State v. Smith, No. 16-0264, ___ W. Va. ___, ___ S.E.2d ___ (March 1, 2017).
Consequently, even if Ms. Johnson had properly preserved the closing argument DNA issue,
we would have ruled against her on the merits.
37